Social Networking - Employees at Work, at Home and Online

Yet another decision was handed down this week in an unfair dismissal claim involving comments made on Facebook1 (The O'Keefe v The Good Guys Decision). The comments were made out of work hours and posted from a home computer and with the Facebook privacy settings set to the maximum possible by a now former employee of the Good Guys. Deputy President Swan of Fair Work Australia (FWA) noted in the judgment that "the separation between home and work is now less pronounced than it once used to be." This article explores the separation, or overlap, of work, the employment relationship and out of hours conduct.

Social media may be relatively recent phenomena (the term includes social networking websites, such as Facebook, Google+ and Myspace, and also blogs, wikis, podcasts and online forums), but the legal principles applied in cases that have arisen over the past few years are well established. It does appear however as DP Swan noted in the O'Keefe v The Good Guys Decision that because of the blurring between the private and professional realms an act that once might not have been considered to constitute a necessary link between out of work behaviour and the workplace may now, because of the broad reach of social media, constitute a sufficient link.

In the O'Keefe v The Good Guys Decision, O'Keefe, the applicant, was dismissed for a posting to his Facebook page which was deemed to be threatening to a work colleague. The posting, not denied by the applicant, as appearing in the judgment read, "f...ing work still haven't managed to f...ing pay me correctly. C...s are going down tomorrow."

DP Swan held:

Prima facie, threatening another work employee is a serious issue and one which would not be tolerated in any workplace. The manner in which the threat was made and the words used provided sufficient reason for the respondent's dismissal of the applicant on the grounds of serious misconduct.

Here the link between out of work behaviour and the workplace is quite clear. In an earlier case involving Facebook which we can call Fitzgerald v Escape Hair Design2, Commissioner Bisset found that a comment made by a Ms Fitzgerald about her employer did not warrant a valid reason for dismissal. The comment that was said to be one of the reasons for the dismissal displayed on her Facebook page read "Xmas bonus along side a job warning, followed by no holiday pay!!! Whoooooo! The Hairdressing Industry rocks man!!! AWSOME!!!" [sic]

Ultimately Commissioner Bisset held:

I do not consider the posting on Ms Fitzgerald's Facebook page to be detrimental to Ms Smith's business. It certainly was a foolish outburst. It was also inaccurate. The comments appear to have remained on the Facebook page for at most a couple of weeks until the page was totally removed (as opposed to a change of "status" which it appears occurred in late December). Viewing of the page was limited to Ms Fitzgerald's "friends".

In the course of her judgment the Commissioner touched on the key areas of out of work conduct and the employment relationship that will probably continue to be of central importance in those cases involving social media and dismissal. The Commissioner's own words succinctly capture the issues:

Postings on Facebook and the general use of social networking sites by individuals to display their displeasure with their employer or a co-worker are becoming more common. What might previously have been a grumble about their employer over a coffee or drinks with friends has turned into a posting on a website that, in some cases, may be seen by an unlimited number of people. Posting comments about an employer on a website (Facebook) that can be seen by an uncontrollable number of people is no longer a private matter but a public comment.

It is well accepted that behaviour outside working hours may have an impact on employment to the extent that it can be said to breach an express term of [an employee's] contract of employment.

A Facebook posting, while initially undertaken outside working hours, does not stop once work recommences. It remains on Facebook until removed, for anyone with permission to access the site to see. A Facebook posting comes within the scope of a Rose v Telstra consideration but may go further. It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences.

How far I should take the Facebook posting beyond "out of working hours conduct" was not subject to any detailed submissions in this matter.

I do not know how many people ultimately accessed Ms Fitzgerald's Facebook page or what they thought of what they read. I do know that Ms Fitzgerald did not name the salon where she worked and there is no suggestion that this information was readily available on her page. Whilst clearly the comments were directed at the hairdressing industry I do not consider that the comments were such that they would adversely affect the industry as a whole or Ms Smith's salon specifically.

The quote in the second paragraph above and later mentioned by the Commissioner is from an oft cited case called Rose v Telstra3. It is "oft cited" for the very good reason that it contains one of the most comprehensive discussions of the employment relationship and out of hours conduct to date and also contains one of the widest surveys of previous judicial reasoning on the subject.

Central to any employment relationship is the concept of what in Australia has come to be termed the duty of fidelity and good faith. An employee's duty of fidelity and good faith has long been implied into an employee's employment contract (it's getting on for about 100 years now). As Vice President Ross (as he then was) noted in the Telstra v Rose case, 'One of the most concise and authoritative statements of what is generally encompassed by the duty of fidelity and good faith is to be found in Blyth Chemicals v Bushnells'4. In that case their Honours Dixon and McTiernan JJ said:

Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty. Or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal ... But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to future conduct arises.

The reasoning of VP Ross then leads to a consideration of the concept of trust and confidence in the employment relationship and finally the conclusion that, "It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited:

the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or

the conduct damages the employer's interests; or

the conduct is incompatible with the employee's duty as an employee.

In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee. Absent such considerations an employer has no right to control or regulate an employee's out of hours conduct."

What conduct will amount to a breach of an employee's duty and ultimately dismissal will turn on the facts in every particular instance. Of course determining which side of the line the facts are on is not always an easy matter, especially when one considers that the line is not fixed. Another case5 involving Telstra and allegations of sexual harassment recently demonstrated this. It was held at first instance that the duty of fidelity and good faith had not been breached despite the employee lying to the company when an investigation was launched into some "difficulties" that had arisen at work. On appeal a majority of the full bench decided that the duty was breached (the minority agreed with the decision maker at first instance). As the case did not involve the use of social media we will not discuss it further here, but its rather salacious details do make for an interesting read and of course the legal principles that have been outlined above were also considered and applied to the facts.

The pervasiveness of social media will probably mean that more cases involving out of hours behaviour and activity will come before the tribunals and courts. Employees would be, if not wise, at least prudent not to vent their gripes so publicly and to be more cautious in their postings generally, both with a regard to their current employer and any prospective ones.